Opinion
BOARD No. 055945-90
Filed: March 14, 1995
REVIEWING BOARD:
Judges McCarthy, Wilson, and Fischel.
APPEARANCES:
John P. Donovan, Esq., for the employee.
Jean M. Shea, Esq., for the insurer.
After the employee, an assembler, fell in the bathroom at work, striking her head against the wall and landing on her back on August 17, 1990, the insurer did not accept her claim but paid § 34 benefits without prejudice from August 18, 1990 to December 24, 1990. (Dec. 2.) The employee sought further benefits following the closed period, and following a conference on the matter the insurer was ordered to pay § 34 benefits from December 25, 1990 to August 29, 1991. (Dec. 2.) Both parties appealed from the order, and a hearing was held. The administrative judge declined to award additional compensation or to award medical benefits beyond the closed period ending August 29, 1991. (Dec. 12.)
The employee appeals from the decision on grounds that the judge's subsidiary findings are not supported by the evidence and that the judge failed to award attorney's fees to employee's counsel. We find sufficient evidence in the record to support the administrative judge's ultimate conclusion that the employee was not entitled to further compensation and could return to work without restrictions. (Dec. 12.) This conclusion is supported not only by an August 20, 1991 MRI report, but by the opinion of Dr. Chernack, whom the judge adopted and who found no positive clinical findings upon examination of the employee and stated of the MRI report that "normal healthy people . . . who have no symptoms have an MRI that looks just like this." (Dec. 10.) Further, the judge found the employee's credibility highly suspect, noting her evasiveness and inconsistencies in her testimony. (Dec. 11.) The judge did not find the employee to be a "believable witness," and her credibility finding is final. Frazier v. Cumberland Farms, 7 Mass. Workers' Comp. Rep. 36 (1993). It is not within this board's authority to substitute its judgment. § 11C.
However, we do find error in the judge's failure to award attorney's fees to employee's counsel. Section 13A(5) provides that when the employee prevails at hearing after the insurer contests a claim for benefits, the insurer shall pay a $3,500.00 fee plus expenses to employee's counsel. At the hearing, the insurer denied that the employee sustained an industrial injury arising out of and in the course of her employment. The hearing judge found that the employee had indeed injured herself in a work-related accident and ordered weekly indemnity benefits for a closed period. The employee has established entitlement to a fee under § 13A(5). See Goldstein v. Stop Shop, 6 Mass. Workers' Comp. Rep. 211 (1992). The insurer is directed to pay employee counsel a fee of $3,500.00. In all other respects, the decision is affirmed.
Section 13A further provides that the $3,500.00 fee may be increased or decreased by the administrative judge at her discretion based on the complexity of the case or the effort expended by counsel.
The judge accomplished this by ordering "that the conference order issued December 3, 1991 awarding a closed period of § 34 benefits from December 25, 1990 to August 29, 1991 at the rate of $443.46 based on an average weekly wage of $665.20, plus medical benefits, be made final." (Dec. 12.)
We think it preferable to make the order without reference to what was done at conference as the hearing is a de novo proceeding. Nevertheless, it is clear that the employee established entitlement to weekly payments for a closed period as a result of a work-related injury.
Judges Wilson and Fischel concur.